TaxTMI 
TaxTMI 
TaxTMI 
1981 (4) TMI 275
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.... had become a qualified medical practitioner having obtained M.B.B.S. degree. The additional ground on which the claim rested was the usual one of default in payment of rent for a period of two months and more as envisaged by s. 11 (1) (d). Default complained of was failure to pay rent for the months of September, October and November, 1972. Appellant contested the suit, inter alia, contending that he did not commit default in payment of rent for the months of September, October and November, 1972, and that the same was paid but no receipt was passed and that as the respondents were avoiding statutory liability of passing the receipt acknowledging payment of rent the appellant was forced to send the rent by Money Order from December 1972 and he sent the same month after month, and, therefore, he could not be dubbed a defaulter within the meaning of s. 11(1) (d). Controverting the ground of personal requirement, the appellant contended that the property belonged to a firm and, therefore, the same cannot be claimed for the use of any one partner for his business other than the business of the firm. And in any case, the respondents have number of houses in their possession and the re....
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....ement of respondent 1 Manoharlal Sharma no more survives because he has no subsisting interest in the suit shop in view of the partition decree in Suit No. 4 of 1974 was negatived observing that the appellant had not moved the first appellate court with a proper application under order 41, rule 27 of the Code of Civil Procedure and as there was no such application on the record of the case the contention could not be entertained. Alternatively, the High Court found it difficult to accept the contention that during the pendency of the appeal if the house in question was allotted to the share of one of the co-sharers of the decree (sic) the decree which had been passed in their favour becomes nullity and is liable to be set aside by the appellate court on this ground alone. Relevant to the second contention the High Court observed that the appellant did not challenge the finding of the two courts below on the question of default in payment of rent. Accordingly the High Court dismissed the second appeal with costs. Hence this appeal. Learned counsel for the appellant canvassed the same two contentions before us which were pressed before the High Court. It was contended that the High ....
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....e has been a compromise on August 16, 1974, and that by the partition effected by the decree the suit shop has been allotted to Pyarelal and thereby he became the owner and landlord of the suit shop with reference to the appellant and as he is neither a party to the suit nor has he applied to be joined as a party to the suit, the present respondents have no subsisting interest in the property and, therefore, a decree for eviction on any of the grounds mentioned in the Rent Act could not be passed in their favour. He requested for setting aside the decree on this ground. It was further stated in the application that this fact being in the special knowledge of the respondents did not come to the knowledge of the appellant and notwithstanding the exercise of due diligence such evidence was not within his knowledge or could not after the exercise of due diligence be produced by him, and, therefore, he sought to produce this additional evidence at the appellate stage. A request was made to accept the certified copy of the partition decree evidencing the fact alleged in the application. The learned appellate judge did not find fault either with the form of the application or compliance w....
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....red to be in two minds when it proceeded to entertain the contention on merits and negatived it on merits. Says the High Court further on this point as under: "Apart from that, it is difficult to accept the contention that during the pendency of the appeal if the house in question is allotted to the share of one of the co-sharers of the decree, the decree which had been passed in their favour becomes nullity and is liable to be set aside by the appellate court on this ground alone. This aspect of the matter has (sic) considered on several occasions by this Court where the plaintiff, during the pendency of the suit has assigned his interest. Even in those cases it has been held that by mere assignment the plaintiff does not lose the right to maintain the suit. In my view, the position will be all the more difficult for the defendant if any such objection is taken for the first time in the court of appeal." What precedents are relied upon by the High Court when it says that the aspect required to be considered by it has been examined on a number of occasions left us guessing because there is no citation in the judgment. If the precedent relied upon was quoted in the judg....
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....g into consideration the subsequent events which would non-suit the plaintiff? The expression 'landlord' has been defined in s. 2 (d) of the Rent Act which reads as under: "landlord" includes the persons who for the time being is receiving, or is entitled to receive, the rent of a building whether on his own account or on behalf of another, or on account or on behalf or for the benefit, or himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent, or be entitled to receive the rent if the building were let to a tenant." The inclusive definition is couched in very wide language. However this wide amplitude of the expression has been cut down by the explanation appended to sub-clause (c) of sub- section (1) of s. 11 which reads a under: 11. Eviction of tenants: (a) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Dispute Act, 1947 and to those of section 12, where a tenant is in possession of any building, he shall not be liable to eviction there-from except in execution of a decree passed by the Court on one or more o....
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....st part of sub clause (c) of sub-section (1) of s.11, the person claiming possession for personal requirement must be such a landlord who wants possession for his own occupation and this would imply that he must be a person who has a right to remain in occupation against the whole world and not someone who has no subsisting interest in the property and is merely a rent collector such as an agent, executor, administrator or a receiver of the property. For the purposes of s. 11(1)(c) the expression landlord could, therefore, mean a person who is the owner of the building and who has a right to remain in occupation and actual possession of the building to the exclusion of everyone else. It is such a person who can seek to evict the tenant on the ground that he requires possession in good faith for his own occupation. A rent collector or an agent is not entitled to occupy the house in his own right. Even if such a person be a lessor and, therefore, a landlord within the expanded inclusive definition of the expression landlord, nonetheless he cannot seek to evict the tenant on the ground that he wants to personally occupy the house. He cannot claim such a right against the real owner an....
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.... shop which would meet with his requirement and on this subsequent event tenant requested the court to non-suit the plaintiff. At that stage the proceedings were pending before the High Court in a revision petition at the instance of the landlord questioning a remand to the trial court by the first appellate court for investigation of certain facts. In this revision at the instance of the landlord the High Court took notice of the subsequent event that the landlord's requirement had been fully satisfied as he had come in possession of another shop. In appeal by the landlord to this Court, a serious exception was taken that the High Court could not have taken into consideration an event subsequent to the commencement of the proceedings and non suit the landlord and that too at a stage when the proceedings were pending in revision at the instance of the landlord. Negativing this contention and dismissing the appeal this Court, after referring to the decision in Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhri quoted with approval the following passage from Patterson v. State of Alabama : "We have frequently held that in the exercise of our appellate jurisdiction we have p....
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....utting at the root of the plaintiff's right to continue the action. Coupled with it, there was evidence in the form of a certified copy of the decree showing that the plaintiffs, even if they had some shade of title to commence action, they having lost all interest in the property and the property having become one of exclusive ownership of a person not a party to the proceedings, were no more entitled to continue the proceedings for their own benefit. Have the first appellate court and the High Court acted in accordance with law in ignoring this subsequent event of vital importance ? The first appellate court, as pointed out earlier, proceeded to examine the contention on merits and rejected it on the ground that this being an event subsequent to the passing of the decree by the trial court, no notice could be taken of it, a view contrary to the law laid down by this Court. Same is true of the High Court when it said that even if the landlord who commenced action lost all interest in the property subsequent to the passing of the decree, the decree does not become a nullity and at any rate no note of the subsequent events can be taken in the absence of a proper application und....
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.... under the Rent Act the relief has to be moulded according to the situation on the date of the decree; the decree would mean the decree which is final and not correctible by any judicial proceeding. Manoharlal Sharma, therefore, cannot seek to evict the tenant for his personal requirement. Therefore, the suit for eviction under s.11(1)(c) would ordinarily fail on this ground. However, as the fresh evidence is being taken into consideration and as both the appellate courts and the High Court, have erred in approaching the matter by ignoring the subsequent event, it would be presently pointed out that in order to do justice between the parties the matter will have to be remanded to the first appellate court. Before turning to the next topic, a word about the judicial approach to the question of personal requirement of the landlord under the Rent Act would not be out of place. The learned judge of the first appellate court while upholding the claim of personal requirement of respondent 1 has observed as under: "It is for the plaintiffs to decide whatever they think fit and proper. It is not for the defendant to suggest as to what they should do. The defendant has led evidence ....
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....n and rent out the premises in his possession at the market rate. To curb this very tendency the Rent Act was enacted and, therefore, it becomes the duty of the Court administering the Rent Act to bear in mind the object and intendment of the legislature in enacting the same. The Court must understand and appreciate the relationship between legal rules and one of necessities of life-shelter-and the way in which one part of the society exacts tribute from another for permission to inhabit a portion of the globe. In 'The Sociology of Law', edited by Pat Carlen, the author examines the rent and rent legislation in England and Wales and observes as under: "The prevailing paradigms of neo-classical economics and empiricist political theory have determined the conceptual insularity of law and legal institutions, with the result that they and other social events appear as random existences independent of their historical formation. The force of any theory of law must of course lie in its explanatory power, and this in turn depends on the wider image of social relations which produces it". It was, however, contended on behalf of the respondents that even if in view of ....
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.... reservation is made in the decree for continuation of the proceedings for recovering possession on the ground of non- payment of rent in favour of the present respondents nor have the present respondents undertaken any liability to continue the proceedings on behalf of Pyarelal Sharma for the limited purpose of recovery of rent, in our opinion it would be extremely doubtful if the respondents can still maintain the action for recovering rent and for possession on the grounds mentioned in s. 11(1)(c) & (d). That aspect has not at all been examined either by the first appellate Court or by the High Court. If 'A', a landlord commences action for eviction against his tenant on the only ground of non-payment of rent and during the pendency of the proceedings transfers the property lock stock and barrel to a third person and if the third person is not before the Court, without finally expressing any opinion because the remand is contemplated, it is just unthinkable that such a landlord can continue the suit even after he had no interest in the property. The aspect may have to be examined in The background of the contract between the landlord who commenced the action and his tran....